Gag order on Trump protects Special Counsel Smith but leaves Biden open to criticism

 October 18, 2023

Special Counsel Jack Smith scored a win this week with a gag order that protects him from criticism from former President Donald Trump but leaves his nominal boss, President Joe Biden, as an open and inviting target for harsh critiques, according to The Hill.

The gag order imposed by District Judge Tanya Chutkan is relatively narrow in terms of its applicability in that while certain individuals are now essentially off-limits to Trump, others continue to be fair game.

Despite the limited nature of the gag order, Trump and his attorneys have still decried it as a broad attack on free speech and a particular violation of his First Amendment-protected rights.

Smith's requested gag order granted in part

Following countless sharp critiques and insults against himself and others by former President Trump, Special Counsel Smith requested a gag order to silence Trump in the 2020 election case.

On Monday, Judge Chutkan partially granted that request in a three-page order that outlined the limitations she had decided to impose on the former president.

Referencing Trump's history of verbal attacks targeting courts, prosecutors, and potential witnesses, Chutkan wrote, "The court finds that such statements pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and

At the same time, the judge rejected the arguments from Trump's attorneys that a gag order would unfairly censor his political speech and largely disregarded the fact that he is the front-running presidential candidate amid a contentious campaign season, and said, "The bottom line is that
equal justice under law requires the equal treatment of criminal defendants; Defendant’s presidential candidacy cannot excuse statements that would otherwise intolerably jeopardize these proceedings."

The restrictions imposed and Trump's response

As for the limitations now imposed on Trump, his attorneys, and all other "interested parties" in the case who may speak on their behalf, they are prohibited from making any public statements "that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony."

Notably excluded from the restrictions, however, are Trump's critiques against President Biden and his administration, including the Justice Department, and the "government generally," as well as seemingly the judge herself. Trump is also allowed to publicly assert his innocence, claim the prosecution is "politically motivated," and criticize the platforms and policies of his political rivals who may be potential witnesses against him, such as former Vice President Mike Pence.

In the wake of the issuance of that gag order, former President Trump and his campaign immediately set about testing the limits of the speech restrictions imposed against him with a statement released through a campaign spokesperson.

"Today’s decision is an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden, who was granted the right to muzzle his political opponent, the leading candidate for the Presidency in 2024, and the most popular political leader in America, President Donald J. Trump," the statement said. "President Trump will continue to fight for our Constitution, the American people’s right to support him, and to keep our country free of the chains of weaponized and targeted law enforcement."

What happens if the order is violated?

The question now, according to Forbes, is what will happen if, or perhaps when, Trump ends up violating that gag order and whether Judge Chutkan will hold true to prior intonations that she will treat the former president no different than any other random criminal defendant in her courtroom.

Typically, gag order violations are first met with a warning, then fines or other penalties, and finally a finding of contempt and a brief jail sentence, though attempting to jail Trump over things said in a campaign speech or posted on social media would inevitably risk a potential political backlash, including from some who otherwise generally despise and oppose the former president.

Interestingly enough, for all of the attention that this gag order has received, Forbes noted that it actually is far from the first time that limitations have been imposed on Trump's speech, as he'd already faced certain restrictions in this and other cases via protective orders and as part of the conditions of his pre-trial release.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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